HBA Juvenile Law Section 9 th Annual DFPS Conference September 6-7, 2019

1. HBA Juvenile Law Section9th Annual DFPS ConferenceSeptember 6-7, 2019 Gary M. Polland Attorney at Law 1533 W. Alabama St. Houston, TX 77006 (713) 621-6335

2. Dealing with Difficult Parents: Ethics in CPS Proceedings (and Practical Ideas Too) • Overview The parents’ attorney in child protective cases is charged with the responsibility of representing his or her client zealously within the bounds of the law (Preamble: Texas Disciplinary Rules of Professional Conduct, Paragraph 2). It is the intent of this paper to discuss the parameters of ethics concerning the roles of the parents’ attorney.

3. YOU NEED TO KNOW WHAT IT MEANS TO REPRESENT PARENTS • The Basics • Parents are entitled to the same zealous representation owed to all clients accused by the state of wrongdoing. In child protection cases, the parents face a loss of the care, custody, and companionship of their children. There is a reason the burden of proof is so significant – by clear and convincing evidence. • Many parents who are accused of being inadequate parents in Texas face the loss of one of the few precious things in their lives, their children. The majority of parents charged with neglecting their children live in poverty and are disproportionately members of minority groups.

4. Parents rights under Texas law: Parents have a constitutionally protected right to the care, custody, and control of their children • Zealous representation means: • The parent’s attorney must: • Utilize the law to protect these critically important rights • Work with the parent to establish the goals of the representation • Zealously advocate for the parent

5. Counsel client based on a comprehensive knowledge of the law and detailed understanding of the particular case • Investigate the case at every stage • Advise client regarding all options at each stage • Poverty is the leading reason that cause children to end up in the CPA system. In fact, studies show that families earning incomes below the poverty line are 22 times more likely to be involved in the child protective system than families with incomes slightly above it.

6. When children are placed in CPS system care, children and parents face a very high risk of having their relationship terminated. • Parents are more likely to take advice from an attorney who is vigorously fighting for their rights than not. • Communication/Trust • Representing a parent in a CPS case is no different than representing any client except a CPS case is significantly more stressful for the parents you represent. Communicate – Communicate – Communicate (Will Prevent Most Difficult Client Situations) • Texas Disciplinary Rules of Professional Conduct 4.37 – A lawyer must keep a client reasonably informed about the status of a matter and promptly comply with a reasonable request by a client for information. A lawyer also must explain the matter to the extent reasonably necessary to permit the client to make an informed decision concerning the representation.

7. Texas Disciplinary Rules of Professional Conduct 1.03 –The Restatement specifies that these duties require the lawyer to inform the client of “important developments” – such as the dismissal of a claim of the client, or the lawyer having committed malpractice or discovering a conflict of interest – and to provide a summary of information to the client at reasonable intervals so the client may be apprised of progress in the matter. • Build Trust with Your Client! • First meeting may be hurried • Develop trust by: • Listening carefully and patiently to client’s full story

8. Treating client with respect • Being fair and empathetic • Endeavoring to take some visible action for client • Reassure client about confidentiality • Build Trust with Credibility • Focusing on the client’s immediate needs such as issues regarding placement, visitation, and services • By helping to preserve parents’ involvement in the child’s life, attend scheduled visits ensuring transportation difficulties do not impede parents’ efforts to visit child

9. Always Be Explaining We all at times forget that our clients are not knowledgeable about how the CPS system works, the client’s options, what is at stake, consequences of their actions, and inactions. So explain the Law, the process and what is required to achieve the client’s goal. Also manage their expectations. • Shower Them with Paper Paper (answers, discovery responses, reports) is what lawyers produce so you must make sure your clients are aware of all your hard work and it keeps your client informed if they have questions. This answers the common question, what is my lawyer doing for me.

10. Interview Quiet Place Meet your client outside the courthouse in a quiet place and if they are in jail, go there to meet them. • Be Candid on Outcomes Give them realistic advice as to the possible outcomes. • Competent/Diligent Representation You avoid difficult clients if they do believe you are knowledgeable and are working for their best interests as opposed to ignoring them.

11. Dealing with the Difficult Clients Despite all your precautions, you can still end up with a difficult client. In an office meeting clearing the air about the case if possible could work. Let your clients vent, and refer to number 3 in this paper “Communication.” • When All Else Fails – Withdraw • You tried everything and your client cannot or will not listen or wants you out. You then have to withdraw. • An attorney must withdraw from representation of a parent when the representation will result in the violation of Rule 3.08 of the Disciplinary Rules of Professional Conduct. Texas Disciplinary Rules of Professional Conduct, Rule 3.08 states:

12. The attorney’s physical, mental, or psychological condition materially impairs his or her fitness to represent the respondent • The attorney is discharged by the client without good cause. • An attorney may seek permission from the Court to withdraw from a case if such withdrawal can be accomplished without material adverse effect on the client. • The client persists in a course of action involving the attorney’s services that the attorney reasonably believes may be criminal or fraudulent. • The attorneys’ services were used to perpetrate a crime or fraud.

13. The parent insists on pursuing an objective that counsel considers repugnant or imprudent or with which counsel has fundamental disagreement, the representation will result in an unreasonable financial burden or has been rendered unreasonably difficult by the respondent or the parents, the parent failed to substantially fulfill an obligation to counsel for his or her services, or other good cause. • No Good Deed Goes Unpunished. If disaster strikes for you and the client files a grievance, vigorously respond with every piece of paper related to the case filed by you or the TDFPS. • Remember tomorrow is another day. Hopefully your client will be cooperative and work with you and not against you.

14. CONCLUSION • Crucial Rule of the Parents’ Attorney: • Protecting Parent’s Fundamental Liberty Interests • Define the scope of representation • Define and clarify goals: focus on past and future • Client counseling: explain process, options, what is at stake, consequences of decisions, manage expectations • Remember to advocate BETWEEN hearing – when the agency is making important decisions about the case • Always be mindful of where you are in the process and the time limits that impact the case